UT Documents

About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, February 18, 2014

Reply to Jonathan Cook

Dear Jonathan –

Thanks for the kind words and (excluding your headline) the
thoughtful critique. I’ve long been a fan of your work as well, but in this
case, you have profoundly misunderstood and misinterpreted my views. I’m not interested
in ascribing blame, as I’ll be happy to concede that the fault may lay with my
having unclearly expressed myself in a Skype interview, but I instead want to
make clear what I do and do not actually think on these matters.

In sum, I do not remotely deny that structural and corporate
constraints at establishment media organizations severely constrict the range
of acceptable views that can be aired. I’ve made that very point countless
times over the years in all sorts of venues. I knew exactly who I was talking
to in this interview: both the interviewer and the readership. We’ve all read,
understood, and accepted the fundamental validity of Manufacturing Consent and related media theories. My point wasn’t
to deny its validity but rather the opposite: to affirm its validity, but then
point out that one nonetheless should try and can sometimes succeed in
overcoming those constraints. That is a point

I made quite clearly here:

“These kinds of biases are cultural and
generalized, not absolute. . . . The
nature of theories of media bias isn’t that it’s impossible to ever inject
certain ideas into them. That’s just not the case. Exceptions happen. But to
the extent that you’re suggesting that most journalists would find it
uncomfortable and even damaging to their career to write critically of their
employers, of course that’s true.”

Three points about this:

(1) In most of the interview, I was talking about my
own personal experiences at Salon, the Guardian, and now with the Intercept:
not generalizing to everyone’s experience. That’s because the context of the
interview was the launch of our new media organization, and many of the
questions which Michael asked were about whether I have been able, and would
continue to be able, to maintain editorial independence and journalistic
freedom despite working in conjunction with corporate structures. I have been
able to do so, and tried to explain why and how.

I don’t remotely think my situation is
common, or that all or even most independent journalists enjoy the same
leverage, or that my own experience proves these constraints aren’t real and formidable.
Of course they are real and formidable, and I repeatedly said so – both here
and elsewhere. But I also know that I would never allow any media institution,
or anyone else, to interfere with my journalistic freedom, and that was the
point I was making. To me, that was the primary point of the interview: to explain
my experiences doing journalism with these media organizations. So that’s what
I spoke about.(2)In general, I dislike theories of defeatism:
telling other people that certain institutions or constraints are so formidable
and absolute in their design that it’s literally impossible to successfully
exploit or infiltrate them. I want to encourage people, especially independent
journalists, to do the opposite: to think about how to exploit these
institutions, to infiltrate them, to use them to one’s advantage, to overcome
their repressive structures.

There are all sorts of reasons why one might
try and fail. That’s because these institutions are indeed formidable, and they
are designed to be self-protective, and most people will lack the leverage to
defy their dictates for a whole variety of unavoidable reasons. But many people
do use these institutions to be heard, to do the kind of impressive journalism
they want to do, to find ways to inject prohibited and even subversive ideas
into the discourse they produce. I think most people are aware of the reasons
that’s so hard to do. But I also hope people will think about how to do that
successfully. I want to encourage, not discourage, people to think about how to
overcome limits and shatter these constraints.(3) I do believe the internet has shifted the
balance of power in journalism as compared to, say, 20 or 30 years ago –
probably not radically, but definitely substantially. It is simply no longer
necessary to go to work for a large media organization if you want to build a
decent-sized readership. There are journalists, commentators and activists from
around the world who have never been employed by a large media organization who
have amassed thousands, or tens of thousands, or even more Twitter followers –
more than many if not most of the full-time reporters and columnists for those established
media organizations.

In a world where media organizations are
financially struggling and are desperate for online buzz and traffic, that
vests these independent journalists and activists with real leverage. Large
media organizations need them more than they need these large media
organizations, and so they can often set the terms of their work. I hope
independent journalists don’t assume that they’re destined for failure if they
try to use the resources and platforms of these large media organizations to be
heard, because I don’t think they are. Many of them are succeeding at this, and
I hope more do.

* * * * *

Large
corporate media organizations are almost always going to be instruments for
narrowing the scope of ideas and ensuring that the views which serve their
institutional interests are promoted, favored and amplified. That’s intrinsic
to their design and purpose. That proposition is self-evident and not in
dispute. I certainly did not intend to dispute it, and don’t think I did.

But
I also think that no human system is invulnerable. They all have weaknesses to
exploit, and there are always new and innovative strategies that people can
devise to undermine them if they believe that doing so is possible. I know it’s
extremely difficult, and a huge challenge, and will often result in failure. Many
of the independent journalists I admire most do their work entirely outside of
these institutions, and that is a vital and obviously valid choice. But it’s
not the only choice, and I want independent journalists devoted to the right
values and ideals to maximize the strategic options they consider viable.

Thanks
again for the critique. It’s always nice to have pushback from this direction –

Who, in the view of the Obama administration, are Snowden's "accomplices"? The FBI and other official investigators have been very clear with the media that there is no evidence whatsoever that Snowden had any help in copying and removing documents from the NSA.
Here, Clapper is referring to "accomplices" as those who can "facilitate the return of the remaining" documents. As Snowden has said, the only ones to whom he has given those documents are the journalists with whom he has worked. As has been publicly reported, the journalists who are in possession of thousands of Snowden documents include myself, Laura Poitras, Barton Gellman/The Washington Post, The New York Times, the Guardian, and ProPublica.
Is it now the official view of the Obama administration that these journalists and media outlets are "accomplices" in what they regard as Snowden's crimes? If so, that is a rather stunning and extremist statement. Is there any other possible interpretation of Clapper's remarks?UPDATE: In response to media inquiries about what Clapper meant when he referred to "accomplices", a spokesman for the DNI's office, Shawn Turner, is saying this:

"anyone who is assisting Edward Snowden [to] further harm our nation through the unauthorized disclosure of stolen documents." (Turner declined to be more specific when asked if that included journalists.)

Turner may be reluctant to admit it, but that essentially dispels all doubt - if there was any - that Clapper was publicly accusing journalists who publish Snowden documents of being "accomplices" in his "crimes". That a top-level Obama official is publicly accusing journalists of criminality for their journalism seems like fairly big (though unsurprising) news.

Sunday, January 19, 2014

Reuters on Snowden

Other U.S. security officials have told Reuters as recently as last week that the United States has no evidence at all that Snowden had any confederates who assisted him or guided him about what NSA materials to hack or how to do so.

Friday, January 17, 2014

Rep. Rush Holt on Obama's NSA speech

HOLT: ON SURVEILLANCE REFORM, OBAMA OFFERS “FAR LESS THAN MEETS THE EYE”

(Washington, D.C.) – U.S. Rep. Rush Holt (NJ-12), a former member of the Intelligence Committee who has
introduced legislation that would repeal the PATRIOT Act and the
FISA Amendments Act, released the following statement on the President’s
remarks today about reforming the National Security Agency’s
surveillance programs:

“The President’s speech offered far less than meets the eye.

“His
proposals continue to allow surveillance of Americans without requiring
a Fourth Amendment determination of probable cause. They continue to
regard Americans
as suspects first and citizens second. They continue to allow the
government to build backdoors into computer software and hardware. They
fail to strengthen protections for whistleblowers who uncover abusive
spying.

“The
President spoke about navigating ‘the balance between security and
liberty.’ But this is a faulty and false choice. As Barack Obama
himself urged in his first
inaugural address, we must ‘reject as false the choice between our
safety and our ideals.’

“The
Fourth Amendment and other civil liberty protections do not exist to
impede police or intelligence agencies. To the contrary, they exist to
hold to hold government
agents to a high standard – to ensure that they act on the basis of
evidence, rather than wasting time and resources on wild goose chases.

“Even
the modest improvements announced today are subject to reversal at a
stroke of the President’s pen. A standard of ‘trust my good intentions’
isn’t good enough.
Congress should reject these practices and repeal the laws that made
the NSA’s abuses possible.”

Thursday, January 09, 2014

From last fast-track bill for TPP

Tuesday, January 07, 2014

4 points about the 1971 FBI break-in

The New York Times this morning has an extraordinary 13-minute video from a team of reporters including the independent journalist Jonathan Franklin, and an accompanying article by Mark Mazzetti, about the heroic anti-war activists who broke into an FBI field office in 1971 and took all of the documents they could get their hands on, and then sent those documents to newspapers, including the New York Times and Washington Post.

Some of those documents exposed J. Edgar Hoover's COINTELPRO program, aimed at quashing internal political dissent through surveillance, infiltration and other tactics. Those revelations ultimately led to the creation of the Church Committee in the mid-1970s and various reforms. The background on the Church Committee's COINTELPRO findings and the "burglary" operation which exposed it is here.

With the statute of limitations elapsed on their "crimes", ones the FBI could never solve, the courageous perpetrators have now unveiled themselves. The NYT story is based on a new book by Post reporter Betsy Medsger and the forthcoming documentary 1971 (of which my journalistic partner, Laura Poitras, is an Exective Producer). There are four crucial points to note:

(1) Just as is true of Daniel Ellsberg today, these activists will be widely hailed as heroic, noble, courageous, etc. That's because it's incredibly easy to praise people who challenge governments of the distant past, and much harder to do so for those who challenge those who wield actual power today.

As you watch the video, just imagine what today's American commentariat, media class, and establishment figures from both parties would be saying in denouncing these activists. They stole government documents that didn't belong to them! They endangered national security! They did not take just a few documents but everything en masse that they could get their hands on. Former FBI and CIA chief William Webster is shown in the film conceding that the documents they revealed led to important debates, but nonetheless condemning them on the grounds that they used the "wrong methods" - criminal methods! - to expose these bad acts, insisting that they should have gone through unspecified Proper Channels.

That all sounds quite familiar, does it not? Many of the journalists and pundits who today will praise these activists would have undoubtedly been leading the orgy of condemnations against them back then based on the same things they say today.

(2) The crux of COINTELPRO - targeting citizens for their disfavored political views and trying to turn them into criminals through infiltration, entrapment and the like - is alive and well today in the United States. Those tactics are no longer called COINTELPRO; they are called "anticipatory prosecutions" and FBI entrapment. The targets are usually American Muslims but also a wide range of political activists. See here for how vibrant these COINTELPRO-like tactics remain today.

(3) The activists sent the FBI's documents they took to various newspapers. While the Post published articles based on them (after lengthy internal debates about whether they should), the other papers, as Trevor Timm documents, "were not nearly as admirable." In particular:

According to Medsger’s book, even though the New York Times eventually published a story based on the documents, a reporter of theirs apparently handed the documents back to the FBI to help with their investigation. And the Los Angeles Times, never published any story and may have also handed the documents back to the FBI.

Moreover, the U.S. Government exhibited zero interest in investigating and prosecuting the lawbreakers inside the FBI. Instead, they became obsessed only with punishing those who exposed the high-level wrongdoing. This, too, obviously should sound very familiar.

(4) The parallels with the 1971 whistleblowers and those of today, including Edward Snowden and Chelsea Manning, are obvious. One of the 1971 activists makes the point expressly, saying "I definitely see parallels between Snowden's case and our case" and pronouncing Snowden's disclosure of NSA documents to be "a good thing". Another of the activists, John Raines, makes the parallel even clearer:

"It looks like we’re terribly reckless people," Mr. Raines said. "But there was absolutely no one in Washington — senators, congressmen, even the president — who dared hold J. Edgar Hoover to accountability."

"It became pretty obvious to us", he said, "that if we don’t do it, nobody will.”

Medsger herself this morning noted the parallels, saying on Twitter that she hopes that her book "contributes to the discussion" started by Snowden's whistleblowing. The lesson, as she put it: "we've been there before."

Note, too, that these activists didn't turn themselves in and plead to be put in prison by the U.S. Government for decades, but instead purposely did everything possible to avoid arrest. Only the most irrational among us would claim that doing this somehow diluted their bravery or status as noble whistleblowers.

Here again we find another example of that vital though oft-overlooked principle: often, those labelled "criminals" by an unjust society are in fact its most noble actors.